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Justice Department Escalates Fight with Judiciary · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: James Boseburg, the chief Judge of the US District Court
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Speaker 2: for the District of Columbia, has been at the center
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Speaker 2: of the Trump administration's.
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Speaker 3: Efforts to deport accused.
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Speaker 2: Venezuelan gang members under an eighteenth century wartime law, the
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Speaker 2: Alien Enemies Act. He's also been at the center of
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Speaker 2: the administration's attacks on the federal judiciary. Attorney General Pam
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Speaker 2: Bondi has repeatedly criticized Boseburg.
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Speaker 4: This judge has no right to ask those questions. You
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Speaker 4: have one unelected federal judge trying to control foreign policies,
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Speaker 4: trying to control the Alien Enemies Act, which they have
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Speaker 4: no business presiding over. This judge had no right to
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Speaker 4: do that. They're meddling in foreign affairs, They're meddling in
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Speaker 4: our government. And the question should be why is a
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Speaker 4: judge trying to protect terrorists who have invaded our country
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Speaker 4: over American citizens, And then, of course Boseburg trying to
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Speaker 4: control our foreign policy. These judges are out of control.
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Speaker 4: We are going to fight back, and we are going
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Speaker 4: to win.
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Speaker 2: President Trump has called Boseberg a radical left lunatic of
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Speaker 2: a judge, a troublemaker and agitator, even calling for his
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Speaker 2: impeachment that led to a rear rebuke from Chief Justice
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Speaker 2: John Roberts in March. Now the Justice Department is escalating
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Speaker 2: its fight with Boseburg. It's filed an ethics complaint accusing
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Speaker 2: the judge of misconduct. My guest is constitutional law expert
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Speaker 2: David super, a professor at Georgetown Law. David, why has
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Speaker 2: the administration been focusing so much on Judge Boseburg?
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Speaker 5: Well cass are assigned to district judges randomly. Judge Boseberg
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Speaker 5: have the misfortune of drawing the first case in involving
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Speaker 5: the Trump administration's bizarre application of the Alien Enemies Act
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Speaker 5: in a non wartime situation, and he did what any
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Speaker 5: component judge would do, which is declared illegal.
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Speaker 2: The complaint focuses on a March session of the Judicial
2:17
Speaker 2: Conference of the United States, a panel of judges led
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Speaker 2: by Chief Justice John Roberts. The Justice Department accused Boseburg
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Speaker 2: of raising quote concerns that the administration would disregard rulings
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Speaker 2: of federal courts, leading to a constitutional crisis, and said
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Speaker 2: his comments violated a section of the Code of Conduct
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Speaker 2: for federal judges, which says that they should not make
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Speaker 2: any public comment on the merits of a matter pending
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Speaker 2: or impending in any court. If he did, in fact
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Speaker 2: say this, is it at a bounds for a judge
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Speaker 2: at a meeting that's supposed to be private to say
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Speaker 2: something like that.
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Speaker 5: No, of course not. This complaint doesn't pass the last test.
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Speaker 5: It's not a public statement if the statement was only
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Speaker 5: judges present. I would love to attend meetings to the
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Speaker 5: Judicial Conference, but I'm never invited. I'm sure you would too.
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Speaker 5: It's a private meeting. By this reasoning someone should bring
3:13
Speaker 5: a complaint against Justice Alito or indicating that he thought
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Speaker 5: Rovy Wade should be overruled in circulating his draft opinion
3:22
Speaker 5: in Bobbs, which later became public, Judge Boseburg is not
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Speaker 5: responsible for other people leaking memos about things he said
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Speaker 5: in private meetings among judges any more than Justice Alito
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Speaker 5: would be responsible for the leak of his draft opinion
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Speaker 5: that he shared with other justices.
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Speaker 2: In the complaint, the Justice Department also says that Judge
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Speaker 2: Boseburg had no basis for saying that because the Trump
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Speaker 2: administration has always complied with court orders, but the administration
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Speaker 2: violated Boseberg's verbal order in this very case.
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Speaker 5: Judge Bozberg's role on the judicial conferences as a representative
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Speaker 5: fative of district judges in the District of Columbia, he
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Speaker 5: is responsible for reporting what judges on his court are
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Speaker 5: concerned about, and it would be at their election of
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Speaker 5: his duty if he didn't report concerns that they had.
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Speaker 5: Judges on his court had found the administration to be
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Speaker 5: out of compliance with a number of court orders by
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Speaker 5: administration officials, certainly including the Vice President, arguably including the President,
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Speaker 5: had mused about whether they would honor court orders on
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Speaker 5: various topics, even Supreme Court orders, certainly orders of district courts,
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Speaker 5: and the question of how to deal with the administration
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Speaker 5: violating court orders had already been up and down to
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Speaker 5: the Supreme Court by that point. Obviously it was something
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Speaker 5: they were concerned about. He was not, as we've been told,
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Speaker 5: expressing his own views, but rather the views of other
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Speaker 5: judges on his bench. I'm sure at other times the
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Speaker 5: chief Judge of the District of Columbia may have reported
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Speaker 5: that they feel inundated with bent in all cases where
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Speaker 5: they feel inundated with crystal meth cases. This is a
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Speaker 5: place where judges talk about the challenges of maintaining the judiciary.
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Speaker 5: He was doing exactly what he was supposed to be doing.
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Speaker 2: Is it concerning that apparently a memo of the meeting
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Speaker 2: was leaked to the conservative website the Federalist.
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Speaker 5: Well, the Judicial Conference is representing judges and business about it,
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Speaker 5: so memos of what happened at this meeting do get
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Speaker 5: circulated to judges. President Trump has made a point of
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Speaker 5: appointing members of the Federalist Society to the Judiciary, so
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Speaker 5: many Federalist Society members received this memo and one of
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Speaker 5: them apparently chose to leak it to the Federalist.
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Speaker 2: It's also in isolation. They just took about his comment.
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Speaker 2: There must have been some kind of discussion that followed that,
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Speaker 2: or some remarks and response, but it's just isolated to
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Speaker 2: this one comment that he made, which is unusual.
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Speaker 5: Well, it is, and they describe his comments as being
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Speaker 5: uncalled for, but they don't give us any context to suggest.
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Speaker 1: That they weren't.
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Speaker 5: And again, Judge Bosberg's role there was to bring to
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Speaker 5: the Judicial Conference concerns by judges on his court and
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Speaker 5: judges reacting negatively to administration officials and Republican senators suggesting
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Speaker 5: that they disregard court orders would be an obvious thing
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Speaker 5: to discuss. He doesn't indicate what the point of the
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Speaker 5: agenda was, what prompted this, or what anyone else said afterwards. Moreover,
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Speaker 5: the Code of Judicial Conduct prohibits comments on the merits
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Speaker 5: of the case. This is not a merit issue. This
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Speaker 5: is an issue about what does the court do when
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Speaker 5: it has decided the merits and one of the parties
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Speaker 5: doesn't comply.
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Speaker 2: The Justice Department also complains about his handling of the
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Speaker 2: case involving the alleged Venezuelan gang members, saying he rushed
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Speaker 2: the government through complex litigation, sometimes giving the Trump administration
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Speaker 2: less than forty eight hours to respond.
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Speaker 5: Well, the rushing was by the administration. The administration could
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Speaker 5: have agreed to suspend flights until this matter was litigated,
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Speaker 5: and the parties could have submitted their papers in due time.
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Speaker 5: The administration was in physical control of all of these people.
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Speaker 5: It had no need to send them to Alfalvadore. It
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Speaker 5: chose to do it in a great hurry, and that
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Speaker 5: led to a quick response from Judge Bosebury, many judges
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Speaker 5: would not have given the administration any operatity to respond
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Speaker 5: at all when enjoining a crisis that was entirely of
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Speaker 5: that party's making. Judge Boseburg bend over backwards to be
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Speaker 5: considerate of the administration and to accommodate the schedule, which
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Speaker 5: they insisted was very urgent, even though they never explained why.
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Speaker 2: If you have a problem with the judge handling your case,
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Speaker 2: does a litigan file a misconduct complaint or wait for
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Speaker 2: the appeal.
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Speaker 5: If what the judge does is sufficiently egregious, you can
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Speaker 5: file a misconduct complaint. It's not out now then appropriate.
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Speaker 5: But what Judge boseverg here did doesn't mean any of
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Speaker 5: the requirements of an improper act. It wasn't public, it
8:41
Speaker 5: wasn't on the merits, and wasn't prejudicial. So the normal
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Speaker 5: procedure would be either to appeal or in some instances,
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Speaker 5: to move for the judge to be recused. But the
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Speaker 5: standard even for recusal and for appeal is much much
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Speaker 5: higher than this, and the standard judicial misconduct is higher still.
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Speaker 2: You said doesn't pass the left test. What do you
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Speaker 2: expect to happen here?
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Speaker 5: In a normal world? The Chief judge of the DC
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Speaker 5: Circuit would dismiss this outright, because this comes from the
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Speaker 5: Justice Department and from an administration that has been exceedingly
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Speaker 5: vindictive and is cost lines that none of its predecessors
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Speaker 5: have in criticizing sitting judges. The chief Judge may refer
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Speaker 5: it to a panel, but those judges would then dismiss it.
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Speaker 3: We've talked before about this.
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Speaker 2: This is the latest in a string of confrontations of
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Speaker 2: the Trump administration with the federal courts. They filed a
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Speaker 2: misconduct complaint in Fbruary against another DC federal judge, Anna Reyes,
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Speaker 2: accusing her of hostile and egregious misconduct for her sharp
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Speaker 2: questioning of government lawyers in the case on the Pentagon's
9:55
Speaker 2: attempts to ban transgender people from military service. And last
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Speaker 2: month they suit every judge in Maryland over a standing
10:02
Speaker 2: order that blocked the immediate deportation of migrants, challenging their
10:06
Speaker 2: removal for two days.
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Speaker 3: Is there a strategy here?
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Speaker 5: Well, certainly, the strategies to intimidate federal judges the public
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Speaker 5: criticisms of them, which have led reportedly to spikes and
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Speaker 5: death threats, is part of this. A suggestion that they
10:23
Speaker 5: don't have to follow them, the characterization of them as
10:26
Speaker 5: radical leftists. Some of the judges they've called radical leftists
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Speaker 5: were appointed by Ronald Reagan, but no mind. So this
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Speaker 5: is all part of a broader strategy to delegitimate the courts,
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Speaker 5: to have people not believe that the courts can determine
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Speaker 5: the law, and they have people do entirely what the
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Speaker 5: government says. That's the path of the dictatorship.
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Speaker 2: How unusual is it for the Justice Department to file
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Speaker 2: a complaint against a federal judge? In the past, under
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Speaker 2: other presidents have justice departments taken this course.
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Speaker 5: Almost never, and a good example of that is the
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Speaker 5: behavior of Judge Cannon in one of President Trump's criminal cases.
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Speaker 5: A number of her rulings were very strange, sometimes self initiated,
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Speaker 5: rulings in favor of mister Trump, and the Justice Department,
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Speaker 5: though it.
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Speaker 1: Had plenty of grounds.
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Speaker 5: Didn't even move to recuse her, much less vile a
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Speaker 5: judicial misconduct complaint. The ordinary views of the Justice Department
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Speaker 5: has a strong interest in public respect for the judiciary
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Speaker 5: and doesn't want to undermine it. This administration obviously feels differently,
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Speaker 5: and tell us.
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Speaker 2: A little about Judge Bosberg's reputation.
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Speaker 5: Judge Boseburg's an extremely thorough, extremely smart judge. He basically
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Speaker 5: gives you what you get. If you give him a
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Speaker 5: serious argument, he'll either ruin your favor or give you
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Speaker 5: a careful, analytical reason why he won't. If you give
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Speaker 5: him a silly argument, he will say so and not
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Speaker 5: dignify it with a lot of extra words. He's very
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Speaker 5: hard working, very attentive to the law. He's ruled in
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Speaker 5: the Trump administration's favor on a number of matters, including
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Speaker 5: involving the Alien Enemies Act, because he felt the law
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Speaker 5: was in their favor. He's not a partisan.
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Speaker 2: And by the way, the DC Appellate Court has not
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Speaker 2: yet addressed the complaint against Judge rey As for her
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Speaker 2: sharp questioning of government lawyers.
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Speaker 5: I will point out that the standard was that lawyers
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Speaker 5: shouldn't be sharply questioned. They are only about two judges
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Speaker 5: I ever practiced in front of that. I couldn't have
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Speaker 5: filed misconduct complaints.
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Speaker 2: Again, you have to have a tough skin if you're
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Speaker 2: going to be a litigator. Always a pleasure, David, thank you.
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Speaker 2: That's Professor David super of Georgetown Law. Coming up next.
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Speaker 2: A bload to labor judges. This is Bloomberg. The Third
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Speaker 2: Circuit Court of Appeals has found that the Labor Department's
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Speaker 2: internal agency judges don't have the power to hear enforcement
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Speaker 2: disputes over the H two A visa program for seasonal
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Speaker 2: farm workers. It ruled in favor of a New Jersey
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Speaker 2: farm that was trying to overturn more than a half
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Speaker 2: million dollars in penalties by arguing that the Labor Department's
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Speaker 2: judicial system was unconstitutional under Supreme Court precedent, the decision
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Speaker 2: could have broad ramifications. Joining me is constitutional law expert
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Speaker 2: Harold Krant, a professor at the Chicago Kent College of Law,
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Speaker 2: hel tell us about the challenge to the fines here.
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Speaker 6: The tourture case concerned administration of the H to A
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Speaker 6: visa worker program, which is designed to bring in seasonal
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Speaker 6: workers from out of the country to help with orchards
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Speaker 6: in this case, or farms, or it could be entertainment
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Speaker 6: complexes where there's not enough US domestic workers. And the
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Speaker 6: program is a win win. It helps US industries and
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Speaker 6: it helps people from outside the borders get a little
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Speaker 6: taste of the United States and earn some money at
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Speaker 6: the same time, and so In this case, the Department
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Speaker 6: Labor alleged that Sun Valley Orchards had violated the requirements
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Speaker 6: of the program in many ways, requiring twelve hour working days,
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Speaker 6: providing inadequate water supplies, inadequate bathroom breaks, and so far.
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Speaker 6: And so they decided to bring an enforcement action, which
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Speaker 6: ended up being hundreds of thousands of dollars in fines,
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Speaker 6: as a way to punish Sun Orchards, also to give
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Speaker 6: some kind of compensation back to the workers, and at
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Speaker 6: the same time send a signal to others who were
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Speaker 6: using seasonal workers through the H two A program. And
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Speaker 6: so this case raised the question then of could this
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Speaker 6: enforcement action be brought within the agency itself. And this
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Speaker 6: comes on the heels of the Supreme Court's decision in
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Speaker 6: the JERKXI case, which surprisingly limited the types of cases
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Speaker 6: that can be brought before agency tribunals. And all the
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Speaker 6: court appeals are struggling with these cases now because the
15:02
Speaker 6: Supreme Court did not make a very clear distinction of
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Speaker 6: what type of enforcement claims can be brought before the
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Speaker 6: agency and which have to go to court with a jury.
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Speaker 6: And that's a huge consequence because if you have an
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Speaker 6: enforcement action before court with a jury, it's slower, it's
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Speaker 6: more expensive, and as a result, agencies can bring fewer
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Speaker 6: enforcement actions and they will have to pick and choose.
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Speaker 6: So this case comes on the heels of many now
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Speaker 6: across the country struggling with challenges to agency enforcement actions,
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Speaker 6: trying to figure out which side of line do they
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Speaker 6: fall on. Can they be brought before the agency or
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Speaker 6: does the agency have to go to court with the
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Speaker 6: jury trial and bring the action there.
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Speaker 2: As you mentioned, going a trial is expensive. Why do
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Speaker 2: employers prefer going a trial to having an administrative law
15:54
Speaker 2: judge decide the case?
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Speaker 6: Well, there are several reasons. I mean, one is they
15:59
Speaker 6: think that with some credibility, they think that the ALJ
16:03
Speaker 6: and the agency which will then decide the case may
16:06
Speaker 6: well be biased against them. Some limited data bears us
16:10
Speaker 6: out not conclusive.
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Speaker 1: But there's some data.
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Speaker 6: But on the other hand, they think that the agency
16:16
Speaker 6: won't be as likely to bring the action if they
16:18
Speaker 6: have to spend so much money on enforcement. So in
16:21
Speaker 6: any given case, the goal would be to go to
16:26
Speaker 6: court because it takes longer and the agency may not
16:30
Speaker 6: be able to expend the resources to see it through.
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Speaker 2: Here, the oral arguments hinged on a public rights exception
16:38
Speaker 2: in the Jocracy case.
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Speaker 6: So what the the people held in Charcracy was that
16:44
Speaker 6: it limited what we understood to be the public rights doctrine.
16:47
Speaker 6: The public rights doctrine suggested that the Seventh Amendment and
16:51
Speaker 6: those kind of key rights that everybody enjoys in terms
16:55
Speaker 6: of going to trial and having a jury of your
16:58
Speaker 6: peers be a protection doesn't apply if the issues between
17:03
Speaker 6: the government and a private individual. That was our old
17:07
Speaker 6: understanding of the public rightstock and so that if Congress
17:11
Speaker 6: set up an administrative scheme with penalties for dangerous workplace
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Speaker 6: or in this case, you don't treat your employees right,
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Speaker 6: or another case it's dangerous chemical storage or privacy violations
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Speaker 6: of the Congress sets up that scheme, it can choose
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Speaker 6: whether to have enforcement in an administrative agency if it
17:32
Speaker 6: wanted to, because it had to do with a non
17:35
Speaker 6: common law right of action that Congress has created, and
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Speaker 6: therefore can decide to use the instrumentality or mechanism of
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Speaker 6: an administrative agency to adjudicate it. That was the prior understanding.
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Speaker 6: The Supreme Court in Geocracy cut that back, but we
17:50
Speaker 6: don't know exactly how far they really said. Two different
17:54
Speaker 6: things difficult to reconcile. The first they said, if there
17:57
Speaker 6: is a close common law analog to the action, even
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Speaker 6: if Congress has created a new one, if it looks
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Speaker 6: like a common law action, then the jury trial right remains.
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Speaker 6: And so in the Chocracy case itself, it was a
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Speaker 6: fraud action against people who had tried to swindle people
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Speaker 6: under the securities laws, and so the court there said,
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Speaker 6: this looks like a common law fraud action. It has
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Speaker 6: to go to a court. And most of the courts
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Speaker 6: of appeals that have been resting with this look at
18:28
Speaker 6: that line and try to see how close to a
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Speaker 6: common law action does this particular issue exist in terms
18:38
Speaker 6: of whether or not the enforcement can be placed in
18:41
Speaker 6: a court or in an administrative agency.
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Speaker 2: So Rob Johnson, a senior attorney at the Institute for
18:46
Speaker 2: Justice and counsel for Sun Valley, told Bloomberg this decision
18:51
Speaker 2: means that employers facing penalties for H TWOA violations can
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Speaker 2: now demand a jury trial in federal court. Is that
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Speaker 2: true for all violations or certain violations.
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Speaker 6: Probably all violations of the H two A program. This
19:05
Speaker 6: doesn't cover, of course, other administrative mechanisms. And indeed, the
19:09
Speaker 6: Third Circuit has gone the other way in a separate case,
19:13
Speaker 6: but he's right with respect to this particular mechanism for
19:17
Speaker 6: seasonal workers. The court held that the particular enforcement looked
19:23
Speaker 6: like a common law contract action because of the fact
19:27
Speaker 6: that under the program, in essence, the Department of Labor
19:31
Speaker 6: enforces employers to provide certain contractual services to these seasonal workers.
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Speaker 6: And so the court held that even though interestingly enough,
19:42
Speaker 6: this arises in an immigration type of context, because we
19:47
Speaker 6: of this pseudocontractual underlying requirement that all infractions have to
19:53
Speaker 6: go to court, and you know, turning the lens the
19:56
Speaker 6: other way, we know that, in fact, the Supreme Court
19:59
Speaker 6: in indocracy itself said the immigration context is different and
20:04
Speaker 6: therefore the Congress should have more plenary authority decide where
20:08
Speaker 6: immigration violations should be brought. But the Third Circuit decided,
20:11
Speaker 6: even though this arose in an immigration type context, the
20:16
Speaker 6: real essence of it is a kind of pseudocontractual relationship
20:20
Speaker 6: between in this case, the orchard and the seasonal workers,
20:23
Speaker 6: and therefore that any infraction had to be brought before
20:27
Speaker 6: a jury trial in the Federal District court.
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Speaker 2: The implications of this case, how far reaching are they?
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Speaker 2: I mean, could it potentially impact other agencies that handle
20:38
Speaker 2: enforcement actions.
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Speaker 6: Well, there's a number of cases now that are percolating
20:42
Speaker 6: around the country in the wake of darctracy, just to
20:45
Speaker 6: see where the line should be brought. We know that
20:49
Speaker 6: much of the mechanism of agency enforcement has been crippled
20:52
Speaker 6: now because of the jocracy decision that instead there'll be
20:56
Speaker 6: fewer cases because they have to be brought in just
20:58
Speaker 6: a courts. And the question is how to figure out
21:01
Speaker 6: which cases had to be brought in court in which
21:03
Speaker 6: cases have to be blought before the agency. So to
21:06
Speaker 6: show the other side of the coin, the Third Circuit itself,
21:09
Speaker 6: in a different case just a couple of months ago,
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Speaker 6: decided that finds for not storing hazardous materials correctly, that
21:19
Speaker 6: that could be fines could be blought before the agency.
21:22
Speaker 6: They're a paint company allegedly had not stored dangerous materials
21:26
Speaker 6: carefully enough, and the court in that case under the
21:32
Speaker 6: Federal Aviation Administration had decided to bring again the action
21:36
Speaker 6: before its own agency, and there was a challenge to it.
21:41
Speaker 6: But the Third Circuit said that this civil penalty action
21:45
Speaker 6: is okay to proceed before an agency because hazardous waste
21:49
Speaker 6: regulations didn't exist of common law, and even though in
21:52
Speaker 6: some ways all this was was a super negligence action,
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Speaker 6: the court in that case, again the same Third Circuit
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Speaker 6: as in the Orchard case, decided that an enforcement nation
22:02
Speaker 6: before an agency could go ahead. So these two cases
22:04
Speaker 6: within one circuit illustrates how the line suggested by the
22:09
Speaker 6: Supreme Court intocracy is almost impossible to apply evenly, and
22:14
Speaker 6: so all the courts of appeals are in disarray in
22:17
Speaker 6: how to limit the ability of the public rights doctum
22:21
Speaker 6: to exist, and which case is the funnel to the
22:24
Speaker 6: sederal district courts and which can continue on before the
22:27
Speaker 6: agency tribunals.
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Speaker 2: The panel consisted of three judges, all appointed by Republican presidents.
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Speaker 3: Do you think that made a difference.
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Speaker 2: And should they try to appeal to the full circuit,
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Speaker 2: which is more evenly balanced the full third Circuit?
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Speaker 6: You raise a great point. I mean, I think that
22:44
Speaker 6: this is a politicized issue, not in most people's minds,
22:48
Speaker 6: but it is in terms of certain kinds of sort
22:53
Speaker 6: of judges with an anti regulatory bias, and even members
22:56
Speaker 6: of the Supreme Court have held that there should be
22:59
Speaker 6: no agent see enforcement tribunals at all. I mean people
23:02
Speaker 6: like justice course such in particular, and judges with that
23:06
Speaker 6: kind of bias, and they could be Republicans, maybe some Democrats.
23:09
Speaker 6: Mostly Republicans would tend to find almost no case appropriate
23:13
Speaker 6: to be brought before an agency tribunal, with probably some
23:17
Speaker 6: exceptions as for immigration, foreign affairs, et cetera. So to
23:21
Speaker 6: a certain extent, they supolicized. I don't think it's exactly
23:24
Speaker 6: the same fault lines as we think of in terms
23:26
Speaker 6: of pro Trump or anti Trump, but certainly it is
23:30
Speaker 6: in terms of anti regulatory Republicans versus others with a
23:35
Speaker 6: different bet. So this case, because of the split in
23:38
Speaker 6: the third Circuit of one of these cases that we've discussed,
23:41
Speaker 6: may go to the Supreme Court, because the Supreme Court
23:43
Speaker 6: really does need to clarify the extent of jocracy and
23:49
Speaker 6: when the stem of amendment, in other words, eclipses an
23:52
Speaker 6: agency's ability to have an enforcement action.
23:55
Speaker 2: If you're in favor of agency actions and power, do
23:59
Speaker 2: you really want to go to the Supreme Court? Again,
24:01
Speaker 2: we want this to go to the Supreme Court.
24:03
Speaker 6: I think within the Trump administration itself, there has not
24:07
Speaker 6: been a clear signal of what the Trump administration's position
24:10
Speaker 6: will be, So the Soitser General will have to sift
24:13
Speaker 6: through these cases and decide what their position is. And
24:17
Speaker 6: they've made announcements about other administrative law issues, you know,
24:20
Speaker 6: principally with the respect to removal of officers, but they've
24:25
Speaker 6: been silent with respect to the breadth of dracracy, So
24:29
Speaker 6: we don't exactly know their position. One would think they
24:31
Speaker 6: might decide to strip their own agencies of power, but
24:35
Speaker 6: they haven't done that. So they're obviously probably a little
24:38
Speaker 6: bit ambivalent about stapping their own agency's power to have
24:44
Speaker 6: these enforcement actions before their own agencies. So that's the
24:47
Speaker 6: decision they'll have to make, and they haven't sent a
24:50
Speaker 6: clear signal yet.
24:51
Speaker 2: I guess your priorities can change depending on whether you're
24:56
Speaker 2: the one in charge of the agency you're not, thanks
24:59
Speaker 2: so much, how that's Professor Harold Krent of the Chicago
25:02
Speaker 2: Kent College of Law. Coming up next on the Bloomberg
25:05
Speaker 2: Law Show. A controversial Trump nominee wins a lifetime appointment
25:10
Speaker 2: to the Third Circuit. I'm June Grosso and you're listening
25:13
Speaker 2: to Bloomberg the Tenth Circuit Court of Appeals. Here's cases
25:19
Speaker 2: from Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. Currently
25:25
Speaker 2: seven judges sit on the Tenth Circuit, seven appointees of
25:29
Speaker 2: Democratic presidents and five appointees of Republican presidents. But the
25:34
Speaker 2: US Judicial Conference apparently thinks that's too many judges for
25:38
Speaker 2: the circuit. Joining me is an expert in the federal judiciary,
25:42
Speaker 2: Carl Tobias, a professor at the University of Richmond Law School.
25:46
Speaker 2: Carl Inner report the Judicial Conference agreed to recommend that
25:51
Speaker 2: the President and the Senate do nothing next time a
25:55
Speaker 2: seat opens up on that Denver based tenth Circuit. Why
26:00
Speaker 2: did they make that recommendation.
26:02
Speaker 1: They do this biennial survey of judge ship needs, and
26:07
Speaker 1: they look at workloads in appellate district courts with consistently
26:11
Speaker 1: low per judge ship caseloads to see whether they can
26:15
Speaker 1: make this recommendation. And here I guess they found that
26:19
Speaker 1: the tenth should not do that fill that judge ship
26:24
Speaker 1: and some other district courts too, and they, you know,
26:28
Speaker 1: they promise it on very conservative estimates of caseload and workload.
26:32
Speaker 1: But I think in the past, actually the President and
26:35
Speaker 1: the Senate have ignored those requests from the Judicial Conference,
26:40
Speaker 1: even though the data show that they don't need all
26:44
Speaker 1: the judges just because they don't want to pass up
26:47
Speaker 1: the opportunity to fill a vacancy.
26:49
Speaker 2: In his first term, President Trump ignored this, and President
26:53
Speaker 2: Biden also ignored this. I mean, the way judicial appointments
26:57
Speaker 2: have become so much more political recently, it seems unlikely
27:03
Speaker 2: that any president is going to pass up a chance
27:05
Speaker 2: to appoint any circuit court judges.
27:08
Speaker 1: That's right exactly. I think there's no question about it.
27:11
Speaker 1: And the presidents believe that most of the policy is
27:15
Speaker 1: made at the appellate level for multiple states within a
27:18
Speaker 1: particular appeals court, and so it's a lost opportunity if
27:22
Speaker 1: you don't capitalize on it. So I have every expectation
27:26
Speaker 1: that this will be ignored.
27:27
Speaker 2: Don't the workloads of circuit court judges change over the years.
27:32
Speaker 2: I mean, if you take it away this time, might
27:34
Speaker 2: you have to put it back another time?
27:37
Speaker 1: Well? You might, But again, I think they're pretty conservative
27:40
Speaker 1: about their estimates, and they've been doing it over a
27:43
Speaker 1: long period of time, so generally they're pretty accurate about that.
27:48
Speaker 1: And there aren't huge swings in the appellate case loads.
27:54
Speaker 1: I don't believe, And you know, increasingly in the appeals courts,
27:57
Speaker 1: you're not getting full dressed opinions, they're not providing oral arguments.
28:03
Speaker 1: All of those are fewer and fewer, and the staff
28:06
Speaker 1: does a lot of the work. There are many people
28:10
Speaker 1: who you know, clerks and other people who to look
28:12
Speaker 1: at the cases rather than give them full treatment. You know,
28:16
Speaker 1: they just had to do trioze because they need more resources.
28:19
Speaker 1: But Congress is not going to provide more judge ships.
28:22
Speaker 1: It doesn't look like it. You know, they have the
28:25
Speaker 1: bill I think came out of committee in March, the
28:29
Speaker 1: one that you know was on the floor in twenty
28:31
Speaker 1: twenty four, but Biden said he wouldn't sign it because
28:36
Speaker 1: it was after Trump's election, and so it was reintroduced
28:39
Speaker 1: on the House side and it has I think passed there,
28:43
Speaker 1: but no action in the Senate. So it may be
28:46
Speaker 1: that that Trump will get twenty two more district seats
28:49
Speaker 1: in the first tranch if it passes, and they may
28:52
Speaker 1: push it.
28:52
Speaker 2: That doesn't need just a simple majority or more best
28:55
Speaker 2: the Senate.
28:56
Speaker 1: That's a good point. In the Senate, I believe it
28:58
Speaker 1: would need sixty votes to get cloture, and so not
29:04
Speaker 1: clear that they would have that that was the beauty
29:07
Speaker 1: of the Senate passing it last time was before anybody
29:10
Speaker 1: knew who was going to have a Senate majority and
29:13
Speaker 1: who would be the president. And so that's the time
29:17
Speaker 1: to strike, you know, in the election year, like in
29:20
Speaker 1: twenty twenty eight, because then no one can predict what's
29:24
Speaker 1: going to happen. And once the Republicans knew that Trump
29:27
Speaker 1: had won and they had a majority, and of course
29:30
Speaker 1: they were happy to sign on. The House had not
29:32
Speaker 1: passed it at that point. You know, Biden was within
29:35
Speaker 1: his rights to then say no, I'm not going to
29:38
Speaker 1: sign that because you had an opportunity and you didn't
29:41
Speaker 1: take it.
29:42
Speaker 2: Well, I think it's the biggest fight over judicial nominee
29:46
Speaker 2: in Trump's second term so far. Over Emil Beauvey, his
29:51
Speaker 2: former personal criminal lawyer, as well as now in the
29:56
Speaker 2: Justice Department, and the Democrats really tried everything about to
30:01
Speaker 2: try to stop his appointment.
30:03
Speaker 3: They devote a lot of time and resources.
30:06
Speaker 2: They stormed out in protest out of the Judiciary Committee
30:11
Speaker 2: when the vote was on, They had whistleblowers ready to
30:14
Speaker 2: come forward, and yet it still got through. So what
30:18
Speaker 2: does this show you about future nominees? I mean, there
30:21
Speaker 2: was so much opposition to Bouve from different parts of
30:26
Speaker 2: the legal community.
30:28
Speaker 1: Well, that's right. I mean there was there were seventy
30:31
Speaker 1: five or so retired state and federal judges who said
30:36
Speaker 1: that the Senate should not confirm him, and there was
30:41
Speaker 1: a fair amount of evidence, and the hearing was one
30:44
Speaker 1: where I think Bouvy was not very forthcoming and he
30:49
Speaker 1: refused to answer a number of questions and seemed evasive
30:51
Speaker 1: about others. And as you suggest, there was a lot
30:55
Speaker 1: of pretty strong evidence that was just never heard. They
30:59
Speaker 1: really asked for these whistleborrowers to be allowed to come
31:03
Speaker 1: in and give their testimony under oath, but it didn't happen.
31:06
Speaker 1: And in the markup when they were discussing the nominee,
31:11
Speaker 1: I think there was a real question as to whether
31:14
Speaker 1: the vote for bov was valid at the time because
31:17
Speaker 1: they didn't have two members of the minority. There was
31:22
Speaker 1: Booker by himself trying to harangue the rest of the members,
31:27
Speaker 1: and they just voted on through. And so I'm worried
31:29
Speaker 1: about the process going forward. What are we going to
31:32
Speaker 1: see when you only have five minutes to ask questions
31:37
Speaker 1: the hearing, and that's not much of an opportunity. And
31:40
Speaker 1: I noticed the first circuit and ninth circuit nominees acted
31:44
Speaker 1: a little bit like bov in the sense that they
31:49
Speaker 1: were not answering questions, saying they were too political or
31:52
Speaker 1: it wasn't appropriate for a nominee, and then also being
31:55
Speaker 1: pretty evasive and not really answering the questions, and the
31:59
Speaker 1: same thing the district nominees. So I'm concerned about the
32:03
Speaker 1: process that we saw, and it was particularly troubling with
32:06
Speaker 1: Bowie's confirmation process. They used to give a second round
32:11
Speaker 1: if it were a really important position, and that probably
32:14
Speaker 1: should have done it in this situation, and it would
32:17
Speaker 1: have made the Democrats at least feel better and they
32:19
Speaker 1: could have asked more questions, but they didn't.
32:22
Speaker 2: Grassley has been supportive of whistle blowers, and yet he
32:27
Speaker 2: refused to allow them to testify, and I just wonder
32:31
Speaker 2: what would the harm have been in allowing them to
32:34
Speaker 2: testify it.
32:35
Speaker 1: Well, I think they were concerned about what the whistleblowers
32:38
Speaker 1: would have to say, even though it would be under
32:41
Speaker 1: oath and so they would have to tell the truth.
32:44
Speaker 1: That's very unfortunate that something didn't happen to allow them
32:48
Speaker 1: to come forward. And I think Grassley was concerned, of course,
32:53
Speaker 1: because he has been a supporter of whistleblowers, but in
32:56
Speaker 1: this situation, it was just too charged, apparently even for him,
33:01
Speaker 1: and so I didn't let it happen. And Democrats, you know,
33:05
Speaker 1: and Booker especially were very troubled and suggested that they
33:10
Speaker 1: should have a special hair they rejected.
33:13
Speaker 2: I don't know of another case I've seen in my
33:15
Speaker 2: fourteen years in the Senate where someone so unqualified for
33:18
Speaker 2: the benches before us.
33:19
Speaker 3: So I often.
33:20
Speaker 2: Wonder when you have these kinds of really contentious nominations,
33:26
Speaker 2: what happens when that person gets on the Circuit Court?
33:29
Speaker 3: I mean, is there any blowback?
33:31
Speaker 1: I think judges try to be collegial with the people
33:34
Speaker 1: they're working with, because you know, they're always going to
33:36
Speaker 1: be sitting on three judge panels except when they're on
33:40
Speaker 1: bod and you have to be able to work with
33:43
Speaker 1: colleagues whose views you don't always agree with. And so
33:48
Speaker 1: I think the judges of the Third Circuit are pretty
33:50
Speaker 1: welcoming group and will do their best to help bovy,
33:56
Speaker 1: acclimatee and be a productive member of court. I've seen
34:01
Speaker 1: that happen, even though the particular judges you know have
34:04
Speaker 1: very different perspectives on judging and substantive issues and all
34:08
Speaker 1: of that, just because it only can work if everybody
34:12
Speaker 1: works together, and both together, because there's plenty of work
34:15
Speaker 1: to do. I think, you know, Booker was particularly concerned
34:18
Speaker 1: because the White House didn't consult on the nomination with
34:22
Speaker 1: the Home State Senators in any meaningful way, and we
34:25
Speaker 1: heard that same took play for the first in the night,
34:28
Speaker 1: and so that's unfortunate because at least there should be
34:31
Speaker 1: some you know, interaction between the White House Counsel and
34:35
Speaker 1: the Home State Senators and so that needs to be
34:39
Speaker 1: reinstated and done because they don't have the blue slips.
34:44
Speaker 1: I wonder if you saw that the President Tuesday night
34:48
Speaker 1: posted on x jaw boning grastly to get rid of
34:52
Speaker 1: the blue slip and criticizing Republicans for retaining it, and
34:57
Speaker 1: Grassly pushed back at the hearing day to say, we're
35:02
Speaker 1: retaining the blue slips for districts and for US attorneys
35:06
Speaker 1: because they protect the prerogatives the Home State senators and
35:09
Speaker 1: the people who they represent in those states. And that's
35:14
Speaker 1: been Lindsay Graham's view as chair and ranking member, and
35:17
Speaker 1: so I think that will go forward, but of course
35:21
Speaker 1: Grassley also instituted the circuit exception for blue slips, and
35:25
Speaker 1: so Booker and Kim didn't have any opportunity to hold
35:31
Speaker 1: back the blue slip for a Bobe.
35:33
Speaker 2: Grassley said he was offended and disappointed by President Trump's
35:37
Speaker 2: social media post. I mean, if there's more critique from Trump,
35:41
Speaker 2: he has all these US attorneys that are being held
35:45
Speaker 2: up because he can't get home state senator approval. I
35:48
Speaker 2: wonder how long this opposition to Trump's suggestion will last.
35:54
Speaker 1: I think he's a person of his word, and I
35:57
Speaker 1: think he has worked very well with Urban when they
36:00
Speaker 1: were either ranking member or chair and alternated. And I
36:04
Speaker 1: think he'll stick by that because you know how important
36:08
Speaker 1: it is, and Graham will back him up. I think
36:11
Speaker 1: it's not going to happen, and it benefits the minority party,
36:15
Speaker 1: and they know what goes around comes around, and they
36:18
Speaker 1: often say that, and you never know in the Senate
36:21
Speaker 1: because it's so close who is going to win the
36:24
Speaker 1: next midterms or the next majority. And so it is
36:28
Speaker 1: important because otherwise you have situations where the home state
36:33
Speaker 1: senators don't have an opportunity to make their views known.
36:37
Speaker 1: And that's unfortunate because they have to be responsible to
36:41
Speaker 1: the voters and so they are concerned about that. But
36:45
Speaker 1: I think Grassley will will be strong on this, and
36:49
Speaker 1: I'll have plenty of support, certainly from the Democrats, but
36:51
Speaker 1: maybe some Republicans as well.
36:53
Speaker 2: I'll put that in the column of we shall see.
36:56
Speaker 2: Thanks so much, Carl. That's Professor Carl to Buy of
37:00
Speaker 2: the University of Richmond Law School. And that's it for
37:03
Speaker 2: this edition of The Bloomberg Law Show. Remember you can
37:06
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37:09
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37:18
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37:21
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37:24
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